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The fundamental right to a fair hearing is infringed when parties are not notified of proceedings being instituted against them.

This was held by the First Hall Civil Court, in its Constitutional jurisdiction on the 20th October 2022 in the judgement Emmanuel Gemmell Smith vs the Minister of Justice, Equality and Governance, the Director General of the Courts of Malta, the State Advocate and Marisa Bugeja. The Court was presided over by Judge Toni Abela.

Mr Smith moved to Malta in 2015 with his family where he subsequently signed a lease agreement with Ms Bugeja. In 2017, his employment was terminated, and he left Malta to return to France, with several outstanding bills payable to Ms Bugeja amounting to €21,459.76. Ms Bugeja decided to take legal action against Mr Smith in front of the Rent Regulation Board for the debt owed to her. Since she only had his mobile number as means of communication, two curators were appointed by a decree on the 8th June 2017 with the responsibility of notifying him of the proceedings.

In its judgement of the 6th March 2019, the Rent Regulation Board ordered Mr Smith to pay the amount aforementioned to Ms Bugeja and appointed French lawyers to proceed with the execution of the judgement according to the EU regulation regarding the Execution of Judgments of Tribunals of Member States. The French lawyers managed to find the address of Mr Smith, who in turn stated that that was the first time he was hearing about the judgement. He said that no one from Malta contacted him when the judgement was given against him and when he was finally informed, the judgement had become res judicata, where he could not appeal it.

Therefore, Mr Smith filed a case in front of the First Hall, Civil Court in its Constitutional jurisdiction whereby he contested the procedures taken against him in front of the Rent Regulation Board and stated that the fundamental right to a fair hearing according to Article 39 of the Constitution and Article 6 of the EU Convention on Human Rights was infringed.

The Court held that the notification of acts are the pediment and source of the principle of a fair hearing. Whoever is instructed with the notification of acts, has the responsibility to register the notification in detail and in any case of doubt, the notification must be presumed to have been made incorrectly.

The Court researched about the position of the ECHR regarding the importance of notification of acts in the context of fundamental rights and came to three conclusions. Firstly, it is the duty and responsibility of the concerned authorities to take the necessary pre-requisites to ensure that all the litigants are informed about proceedings against them. In turn, this would allow them to prepare their necessary defence. Secondly, the parties to the proceedings should always be given the opportunity to participate. Thirdly, the Courts should examine the notification of acts before they start hearing the merits of the case and they must be convinced that all of the parties are notified.

Therefore, in this judgement, the Court concluded that the fact that Mr Smith was not notified of pending proceedings breached his fundamental right to a fair hearing and all the people who participated in the proceedings were at fault. Ms Bugeja failed to communicate properly with the ones who were appointed and failed to carry out further research to locate the residential address of Mr Smith before initiating proceedings before the Rent Regulation Board. The Curators should have been more reticent with the other party so as to leave no doubt regarding their performance of their duties. Lastly, the Court minimally supervised the Curators and relied too much on the parties to do so.

In its decision, the Court refused to revoke the judgement given by the Rent Regulation Board. However, it awarded Mr Smith €2,000 in damages because his fundamental right to a fair hearing was infringed.

Dr Cedric Mifsud was representing the plaintiff in this case.

Av. Malcolm Mifsud 


Mifsud & Mifsud Advocates

The article may also be accessed on Malta Today. 

For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.